Beruflich Dokumente
Kultur Dokumente
Sławomir Dudzik*
CONTENTS
I. Introduction
II. Standards of the Council of Europe concerning the enforceability
of administrative decisions
1. Enforcement of a non-final decision
2. Suspension of implementation of a final decision
III. Enforceability of decisions under Community law
IV. Enforceability of decisions of national regulatory authorities
in the light of the provisions of Framework
Directive 2002/21/EC
V. Enforceability of decisions by the President of UKE
1. Introductory remarks
2. Decisions which may be appealed to the administrative court
3. Decisions which may be appealed to the Court of Competition
and Consumer Protection
VI. Conclusions
Abstract
The article discusses problems of enforceability of regulatory decisions issued
by the Polish regulatory authority – the President of the Office of Electronic
Communications (UKE) in the context of the protection of the rights of electronic
undertakings. The author refers to the standards for implementing decisions
and provisional protection developed in the law of the Council of Europe and
* Dr. hab. Sławomir Dudzik, Professor at the Chair of European Law, Faculty of Law and
Administration, Jagiellonian University, Krakow. Also partner at ‘T. Studnicki, K. Płeszka,
J. Górski’ LP, Kraków.
I. Introduction
in statu nascendi” [in:] C. Mik (ed.), Prawo gospodarcze Wspólnoty Europejskiej na progu XXI
wieku, Toruń 2002, pp. 231–247; “Stan i tendencje rozwoju prawa administracji regulacyjnej w
Polsce” [in:] H. Bauer, P. Huber, Z. Niewiadomski (eds.), Ius Publicum Europeaum, Warszawa
2003, pp. 115–164; “Ochrona konkurencji a prokonkurencyjna regulacja sektorowa” (2004) 3(5)
Problemy Zarządzania 7–34. See also: I. Kawka, Telekomunikacyjne organy regulacyjne w Unii
Europejskiej. Problematyka prawna, Zakamycze 2006, pp. 27–70; M. Szydło, Regulacja sektorów
infrastrukturalnych jako rodzaj funkcji państwa wobec gospodarki, Warszawa 2005, pp. 89–182.
p. 22.
4 T. Barnat, “Ostateczność i prawomocność decyzji administracyjnych a ich wykonalność”
legal_co-operation/administrative_law_and_justice/Texts_&_Documents/CJ-DA-GT%20_2007_
%209%20E.pdf.
8 See ECHR judgment of 11 July 2000 in Case No. 40035/98, Jabari v. Turkey, para. 50.
9 See ECHR judgment of 5 February 2002 in Case No. 51564/99, Čonka v. Belgium.
Article 13 requires that the remedy may prevent the execution of measures that
are contrary to the Convention and whose effects are potentially irreversible
[…]. Consequently, it is inconsistent with Article 13 for such measures to
be executed before the national authorities have examined whether they are
compatible with the Convention, although Contracting States are afforded
some discretion as to the manner in which they conform to their obligations
under this provision” (Article 13(79)). In the Court’s opinion, even though
the interested party can apply for staying the execution of the decision, a
procedure where the court uses its discretion as to whether to apply such
stay or not, does not meet the requirements of an effective remedy. It can
be concluded that the Court opts for essentially automatic staying of the
execution of the impugned decision in cases where a realistic risk exists that
potentially irreversible consequences will occur, contrary to the provisions of
the Convention10.
The issue of suspending the execution of final decisions is dealt with in the
Recommendation No. R (89) 8 of the Committee of Ministers to member states
on provisional court protection in administrative matters11. The recitals to this
Recommendation point out that “immediate execution in full of administrative
acts which have been challenged or are about to be challenged may, in certain
circumstances, prejudice the interests of persons irreparably in a way which,
for the sake of fairness, should be avoided as far as possible”. Thus, this
Recommendation indicates the necessity to create, within the legal systems of
each member state, a possibility for the applicant to request the court to take
measures of provisional protection against the administrative act (Principle I).
Such measures can include “suspending the execution of the administrative
act, wholly or partially, ordering wholly or partially the restoration of the
situation which existed at the time when the administrative act was taken or
at any subsequent time, and imposing on the administration any appropriate
obligation in accordance with the powers of the court” (Principle III).
The possibility of requesting measures of provisional protection should be
available where court proceedings have already been opened to review the
10 “It is not possible to exclude the risk that in a system where stays of execution must be
applied for and are discretionary they may be refused wrongly, in particular if it was subsequently
to transpire that the court ruling on the merits has nonetheless to quash a deportation order
for failure to comply with the Convention, for instance, if the applicant would be subjected to
ill-treatment in the country of destination or be part of a collective expulsion. In such cases,
the remedy exercised by the applicant would not be sufficiently effective for the purposes of
Article 13.” (para. 82).
11 See also: J. Chlebny, “Europejskie standardy procedury administracyjnej i sądowo
act in question as well as in cases of urgency, even though the act concerned
has not yet been challenged in court. It should also be available when an
administrative complaint, the making of which does not have, in itself, any
suspensive effect, has been lodged against the administrative act and has not
yet been decided upon (Principle I). In accordance with this Recommendation,
in deciding whether the applicant should be granted provisional protection,
the court shall take account all relevant factors and interests (Principle II).
For this reason, the role of the court is to balance the various interests which
come into play in a given case, including the ones which are in support of
executing the act. Provisional protection should be granted, in particular, if
the execution of the administrative act is liable to cause severe damage, which
could only be made good with difficulty. This would be the case where the
setting aside of the challenged act could not lead to the reinstatement of the
applicant’s prior legal status. The other situation where, in the light of this
Recommendation, a suspension of the execution of an act is justified, is if
there are, prima facie, serious legal grounds against the administrative act.
This concerns serious defects which are identifiable as early as at the stage
of the preliminary review of the case, and which will undoubtedly lead to the
setting aside of the challenged act12. The Recommendation emphasises the
necessity for the court to act speedily in cases of provisional protection. This
may mean that an oral hearing can be dispensed with but the proceedings
must remain adversarial (Principle IV). The proceedings should not only
involve the applicant; a representative of the administrative authorities and
interested third parties should also have the possibility of presenting their
views. Although this Recommendation does not mention the necessity to
provide a statement of reasons for the court’s judgment on the provisional
measure, the Explanatory Memorandum seems nevertheless to support such a
solution. The statement of reasons should then briefly but clearly substantiate
the issuing of the provisional measure. As already mentioned, there may be
circumstances in which the urgency of the case makes it impossible to organise
an adversarial court hearing. If, however, the court decides to grant provisional
protection without hearing the interested parties, it should examine the case
again within a short time, in adversarial proceedings. The court may act here
on an ex officio basis or at the wish of one of the interested persons who
previously could not be heard by the court.
The creation of possibilities to apply provisional measures of protection
by a court, which is examining the legality of an administrative act, is also
a requirement set by Recommendation Rec(2004)20 of the Committee of
Ministers to member states on judicial review of administrative acts adopted
2006, pp. 53–94, K. Lenaerts, D. Arts, I. Maselis, Procedual Law of the European Union, London
2006, pp. 203–328.
decisions which interfere particularly strongly with the sphere of rights and
obligations of their addressees, such as, for instance, Commission decisions
imposing financial penalties or imposing behavioural or structural remedies
upon an undertaking that violates Community competition law.
Article 242 EC, second sentence, authorises the competent Community
court to suspend the application of the contested act. The decision in that
regard is left to the discretion of the court (“if it considers …”), with the sole
premise being the necessity to take such an action (“if … circumstances so
require”). The application for suspension of the operation of a measure shall
be admissible only if the applicant is challenging the measure in proceedings
before the Court14. The application must be made by a separate document,
filed together with, or immediately after the bringing of the action. For it to
be dealt with urgently, it must not exceed 25 pages15. It must also state “the
subject-matter of the proceedings, the circumstances giving rise to urgency,
and the pleas of fact and law establishing a prima-facie case for which the
interim measure is to be applied”16. The applications are adjudicated upon,
usually, by the President of the ECJ or the Court of First Instance (CFI)
and, exceptionally, by a judge appointed for this purpose17. Community law
does not set a time limit during which the application for suspension of the
application of a decision should be examined.
The decision on an interim measure should contain a statement of reasons,
and Community law indicates that the effect of such a decision is only temporary
and does not affect the court’s decision as to the merits of the case (Article 39
of the Statute of the ECJ)18. It needs to be emphasised that such a decision
may be changed or reversed any time due to a change in circumstances. This
means that the dismissal of an application for suspending the application of
a decision does not preclude a repeated filing of a corresponding application
by the party, as long as that party is capable of demonstrating, in the new
proceedings, that new circumstances support the application of the interim
measure (suspending the application of the decision).
are specified in detail in Article 83–90 of the Rules of Procedure of the Court of Justice and
Article 104–110 of the Rules of Procedure of the Court of First Instance.
15 See Court of First Instance, Practice Directions to parties, OJ [2007] L 232/7, para.
68-71.
16 Article 83(2) of the Rules of Procedure of the Court of Justice, Article 104(2) of the
Commission [2007] ECR II-1781, paras. 121–123, and the case-law cited.
The principal act of the new Community regulatory order in the field
of electronic communications is the Directive 2002/21/EC of the European
Parliament and of the Council of 7 March 2002 on a common regulatory
23 Order of the President of the Court of First Instance in Case T-326/07 R Cheminova and
Others v Commission [2007] ECR II-4877, para. 100, and the case-law cited.
24 See e.g. Order of the President of the Court of First Instance in Case T-12/93 R CCE
Vittel and CE Pierval v Commission, [1993] ECR II-785, para. 20; the order of the President
of the Court of First Instance of 18 March 2008 in Case T-411/07 R, Aer Lingus Group Ltd. v
Commission.
25 See Court of Justice, Annual Report 2007, Luxembourg 2008, p. 184.
26 OJ [2002] L 108/33. For more detail, see e.g. S. Piątek, Prawo telekomunikacyjne Wspólnoty
Europejskiej, Warszawa 2003, p. 32–38; J. Kolasa, “Krajowe organy regulacyjne” [in:] W. Gromski,
J. Kolasa, A. Kozłowski, K. Wójtowicz, Europejskie i polskie prawo telekomunikacyjne, Warszawa
2004, pp. 234–247; I. Kawka, Telekomunikacyjne organy…, pp. 133–139.
27 See e.g. S. Piątek, “Prawo telekomunikacyjne w świetle dyrektyw o łączności elektronicznej”
pp. 247-248.
effects provided for therein, regardless of the appeal procedure pending with
respect to it. The procedure referred to in this provision is a procedure before
an appeal body independent of the parties involved (that is, independent from
the appellant, the authority and other parties affected by the decision). This may
be a court of law, even though this is not an absolute requirement in the light
of Article 4(1) of the Framework Directive. The function of an independent
appeal body may also be performed by quasi-judicial institutions of various
types, as long as the national legislator is able to guarantee their independence,
and if they are specialised enough and have the capacity to collect case-law
experience (in its Article 4(1), the Framework Directive points to a body that
“shall have the appropriate expertise available to it to enable it to carry out
its functions”).29 Administrative bodies, even higher-tier ones, can hardly be
referred to as independent of the regulatory authority. The “inter-dependence”
and hierarchical relationships between them, as well as the fact that they both
belong to administrative structures that usually report to the government,
would not let any administrative body, regardless of where it is situated in the
administrative structures of a member state, meet the criteria of an appeal body
referred to in Article 4(1) of the Framework Directive30. The foregoing means
that the enforceability of decisions of the national regulatory authority does not
necessarily materialise at the stage of the administrative appeal, or quasi-appeal
procedure31. As a result, if the national legislator provides, in the administrative
course of instance, for the possibility of filing an appeal against a decision of
the national regulatory authority to a higher level body, or an appeal to the
authority, which issued the challenged decision, this Directive does not require
that the challenged decision “shall stand” for the duration of such procedures.
Hence, it is allowed for the appeals under administrative procedures provided
for in national law, to have the suspensory effect, that is, for them to suspend
the application of the contested decision. The “suspensory” effect of such an
appeal is excluded only where a party can avail itself of the possibility of filing an
appeal with an independent appeal body, which is, in practice, most frequently
a court of law. It should be emphasised that the decision remaining in force
during the appeal procedure, required under Article 4(1) of the Framework
29 Cf. S. Piątek, Prawo telekomunikacyjne Wspólnoty…, p. 58; N.Th. Nikolinakos, EU
Competition Law and Regulation in the Converging Telecommunications, Media and IT Sectors,
Kluwer Law International, 2006, pp. 211–212.
30 Certain concerns in that regard were expressed by the European Commission in its report
of 2003. See Communication from the Commission to the Council, the European Parliament,
the European Economic and Social Committee and the Committee of the Regions, European
Electronic Communications Regulation and markets 2003, Report on the Implementation of the
EU Electronic Communications Regulatory Package, Brussels, 19.11.2003, COM(2003) 715 final,
pp. 26–27.
31 Cf. S. Piątek, Prawo telekomunikacyjne w świetle…, p. 9.
Directive, should have an ipso iure effect, and should not be made dependent
on the activities of the regulatory authority.32 For due implementation of this
Directive, it is thus not sufficient for the national regulatory authority to be
competent to recognise the enforceability of the challenged decision and put
it into force at the stage of the appeal procedure. Hence, the very possibility
for this authority to make the contested decision enforceable immediately at
this stage would not be an appropriate method for the performance of the
implementation obligations of an EU member state.
It should also be emphasised that the principle of a decision of the national
regulatory authority remaining in force for the duration of the appeal
procedure, referred to in Article 4(1) of the Framework Directive, is not
absolute in its nature. The foregoing provision clearly points to the possibility
for this principle to be overturned by a decision of the appeal body. It means
that it is the obligation of the national legislator to create, for the appeal body,
the possibility of temporarily (that is for the duration of the appeal procedure)
suspending the application of the contested decision. The Community legislator
thus puts the effective decision, concerning the enforceability of the decision
of the national regulatory authority, in the hands of the appeal body, that is,
in practice, a court of law. It then assumes that situations may occur in the
application of national legislations that implement the package of Directives
on electronic communications, whereby the independent appeal body should
suspend the application of the contested decision, even though the decision is
essentially enforceable by virtue of law itself. The Framework Directive does
not specify what grounds should determine such suspension.
1. Introductory remarks
34In accordance with this provision, “Proceedings before the President of UKE shall be
governed by the Code of Administrative Procedure with the amendments hereunder”. See also:
S. Piątek, Prawo telekomunikacyjne. Komentarz, Warszawa 2005, p. 1120.
35 Except for decisions on general exclusive frequency licences following a tender or a
30 August 2002 – Law of Procedure before Administrative Courts (Journal of Laws 2002,
No. 153, item 1270, with further amendments), in the Polish legal system, the presumption of
competence of administrative courts applies in cases of review of administrative activities.
person.
issuing a decision based on the PT, the authority is, in fact, obliged to give it
such an order. Essentially, the order of enforceability should be set out in the
decision itself even though, if the authority does not do so for any reason, it
should have the possibility to issue a decision on giving such an order at a later
date. The legal basis for such a decision would be Article 108(2) KPA. Since
the order of immediate enforceability is required to be given in such cases by
PT itself, when hearing appeals the President of UKE could annul it only if
the case concerned did not refer to one of the decisions specified in Article
98(3), Article 178(1), Article 201(9), Article 202(2) or Article 203(1) PT. The
party’s position to the effect that, for instance, the order is unnecessary to
perform the obligations imposed in the situation concerned, or too onerous,
or its consequences could only be alleviated with difficulty, etc., could not be
accepted.
The determination of the moment from which the order of immediate
enforcement applies, remains controversial45. The literature on the subject
refers in this regard to both the moment the decision or ruling referred to in
Article 108(2) KPA46 is issued, and the moment it is delivered47. It seems that
the latter is better supported by the provisions of the Code, since the legislator
links the effect in the form of the authority being bound by the decision or
the ruling issued with the moment of its delivery (Article 110 in conjunction
with Article 126 KPA). Even if immediate enforcement of a decision upon
its issuance, or upon the issuance of a ruling on giving the decision the order
of immediate enforceability, were accepted (Article 108(2) KPA), this should
not apply to decisions imposing obligations upon a party. Indeed, it would
be contrary to the principles of the rule of law, including the principle of the
citizen’s trust in state authorities, to impose obligations upon a party, which
such party stands no chance to fulfil, if it has not been notified in the form
provided by the law.
The order of immediate enforceability given pursuant to Article 108 KPA
expires upon the issue of the decision changing or annulling the prior decision
(as a result of the filing of an application for re-examination of the case) by
the President of UKE. The order of immediate enforceability provided for
in the decision itself also expires upon the issue by the President of UKE of
a decision annulling such an order. Where the order is given after the decision
45 Doubts arise not only where a decision is pronounced orally (the order would then apply
from such pronouncement). This form of communicating the decision to its addressee(s) is
exceptional though (cf. Article 14 and Article 109 KPA) and is of no major importance in
practice.
46 A. Wróbel [in:] M. Jaśkowska, A. Wróbel, Kodeks postępowania administracyjnego.
48 For more detail, see: R. Sawuła, “Suspensywność skargi sądowo administracyjnej” (2000)
powaniu…, p. 298.
52 S. Piątek, Prawo telekomunikacyjne w świetle…, p. 9.
reserved for the appeal body and not the authority itself. This indicates the
necessity to provide in the PT for a clear exemption from Article 61(2) point
1 PPSA. Having regard to the principle of superiority and the principle of
direct applicability of Community law, it should be concluded that even in the
absence of a clear national rule, the President of UKE is obliged to refuse to
suspend the enforcement of any decision that is challenged in the court and
that pursues, in the case concerned, the objectives of Community electronic
communications Directives. In any event, the competence concerning the
suspension of a contested decision expires once the appeal is passed on to
the administrative court. From that moment on, it is only the court that can
decide on the suspension of the enforcement of the decision or ruling (in part
or in whole) (Article 61(3) PPSA).
A view has been established in the case law of the administrative courts
that “the analysis of the grounds for providing the appellant with provisional
protection leads to the conclusion that the principal objective behind
the procedure is, above all, to ensure maximum judicial effectiveness of
administrative review, through the creation of conditions warranting effective
enforcement of a court judgment… This objective, which is fundamental
for the exercise of justice, and which is pursued by administrative courts,
converges with the interest of the appellant: to keep the status quo until the
case is heard by the court. From this point of view, provisional protection is
an extremely important procedural guarantee of the party’s right because, in a
considerable proportion of cases, it is the only way to protect the party against
the consequences of defective acts and activities of public administration
bodies”53.
An application for suspending a contested decision, filed with the
administrative court, may be accompanied by an appeal, or may follow at a
later date. Unlike in proceedings before an administrative authority, the PPSA
sets out the positive grounds for suspending the enforcement of a decision,
or a ruling, by the administrative court. This is a situation “where there is a
risk of causing material damage or consequences that are difficult to repair”.
The list of these grounds is exhaustive. It makes reference to future events
that can, however, be anticipated on the basis of a reasonable assessment of
the situation, as a consequence of the issuance of the decision54. The case law
of the NSA assumes that it is a damage (financial as well as non-financial),
which cannot be compensated by a subsequent return of a performance or the
53 NSA resolution of 16 April 2007, I GPS 1/07, (2007) 4 Orzecznictwo Naczelnego Sądu
Administracyjnego i Wojewódzkich Sądów Administracyjnych, item 77. See also the comment to
the resolution by R. Sawuła, in: (2008) 1–2 Samorząd Terytorialny 162–166.
54 J. Borkowski, “Wstrzymanie wykonania decyzji w postępowaniu kasacyjnym” (2005) 14
situation when it is not possible to restore original position. This is the case
where there is a risk of losing the subject of the performance that, due to its
properties, cannot be replaced with any other item, and its pecuniary value
would be insignificant for the complaining party, or where there is a risk of
loss of life or damage to health55.
In its aforementioned resolution of 16 April 2007, I GPS 1/07, the NSA
held that the legislator does not co-relate, even in the smallest degree, the
grounds for granting of provisional protection with the likelihood/probability
of the appeal against the decision being, eventually, succeeded. Hearing the
application for the suspension of the enforcement of a decision, the court
cannot thus consider, even preliminarily, whether the decision is defective in
any way.
The court cannot suspend the enforcement of the challenged acts where
“the special statute excludes the suspension of their performance” (Article
61(3) PPSA). It should be concluded that both, in the procedure before the
authority and in the administrative court, this ground should be understood
narrowly. This is a situation where the legislator clearly excludes the possibility
of suspending the enforcement of certain decisions or rulings by the court. As
a result, such an exclusion may not be implicit, as it constitutes an exception
to the principle of effective judicial review of administrative acts. It is worth
noting that the PT does not provide for the exclusion of the possibility of
suspending the enforcement of a decision by the regulatory authority.
A court ruling on suspending the enforcement of a challenged decision
does not bear the attribute of permanence, as it can be changed or annulled
at any time ’where circumstances change’ (this also applies to final rulings)56.
The foregoing means that the complaining party may re-submit its application
for suspension, even if it was rejected previously, provided that the party
demonstrates that the change in circumstances justifies a change in the court’s
position concerning the suspension of enforcement of the challenged decision
or ruling.
A complaint can be filed with the NSA against the ruling of the regional
administrative court concerning the suspension, or refusal to suspend, of
the enforcement of a decision or ruling (Article 194(1) point 2 PPSA). The
foregoing means that the ruling of the regional administrative court concerning
suspension is not final, until the expiry of the time limit for filing the appeal,
or until the NSA dismisses the complaint (Article 168(1) PPSA). This brings
about uncertainty as to the rights and obligations of the complainant, and
55 NSA ruling of 20 December 2004, GZ 138/04, unpublished. See also B. Dauter [in:]
B. Dauter, B. Gruszczyński, A. Kabat, M. Niezgódka-Medek, Prawo o postępowaniu przed
sądami administracyjnymi. Komentarz, Zakamycze 2006, pp. 161–163.
56 The ruling may be issued on an in-camera session (Article 61 § 5 PPSA).
The decisions in cases for the designation of significant market power listed in
Article 206(2) PT, for the imposition of regulatory obligations, for the imposition
of penalties and decisions issued in disputes (except decisions on general
exclusive frequency licences), may be appealed to the SOKiK58. This Court is
part of the state court system in Poland and operates within the structures of the
Regional Court (Sąd Okręgowy) in Warsaw. The proceedings before the SOKiK
are governed by the provisions of the Code of Civil Procedure (KPC); appeals
against its judgments are heard by the Appellate Court in Warsaw.
The possibility of filing an appeal with the SOKiK applies to situations,
where the party is not entitled to use the means of appeal typical for the
review of the functioning of central administrative authorities in Poland,
such as an application for the re-examination of a case, or a complaint to the
administrative court. The legislator has decided that the said decisions are
enforceable immediately by virtue of law itself (Article 206(2a) PT). It means
that in such cases Article 108 KPA or another special procedure does not
apply, and the party is obliged to proceed with implementing the decision upon
its delivery. However, the authority should inform the party of its immediate
57 Cf. T. Woś [in:] Postępowanie sądowo administracyjne…, p. 220
58 As rightly pointed out by S. Piątek, these are any decisions issued in such cases,
both positive and negative, annulling, changing, declaring invalidity. See. S. Piątek, Prawo
telekomunikacyjne…, op.cit. p. 1122.
the NSA, the additional creation of the possibility to file an application for
suspending the enforcement of a regulatory decision at the stage of the appeal
proceedings should be supported. This is dictated by reasons of effectiveness
of judicial review of administration, taken into account by the NSA in its
resolution of 16 April 2007, I GPS 1/07.
Even though it does not follow directly from the provisions of the KPC,
it should be concluded that an application to suspend the enforcement of
a decision can be filed again if justified in the light of new circumstances.
A change in circumstances may also lead to the modification, or annulment,
of the ruling already issued, on suspending the enforcement of a decision61.
The KPC does not set out the premises to be followed by the SOKiK
adjudicating on an application for suspending the enforcement of a decision
of the President of UKE. A view is expressed by the legal doctrine on this
subject that it may be helpful to invoke the case law developed under Article
108 KPA, seen a contrario, or the grounds for suspending the enforcement
of a decision of the administrative court specified in Article 61(3) PPSA.62
It seems that the latter solution is more correct. The procedural guarantees
under both types of proceedings (i.e. before administrative court and SOKiK)
should be approximated to the greatest degree possible.
Hence the SOKiK should also consider whether in the case in question
there is a risk of doing significant damage, or causing effects that may be
difficult to reverse, whereas the ruling of the SOKiK should not be affected
by the very issue of the defectiveness of the decision.
What is of considerable importance for the effectiveness of court protection
is, amongst other things, the time that elapses between the filing of the
application for suspending the enforcement of a decision and the issuance of
the judgment by the SOKiK. Too long a delay in hearing the application may
make it pointless for the party, due to the prior full enforcement (voluntarily
or through administrative enforcement) of the challenged decision. Hence,
the SOKiK should aim to hear the application in as short a period of time
as possible. By analogy to the application for securing a claim (Article 737
KPC), the Court should act without delay, not later than within a week of the
date it receives the application. This issue should be expressly defined in the
provisions of the KPC on the proceedings before the SOKiK.
61 Article 359 § 1 KPC stipulates that “Rulings which do not conclude the proceedings in
the case may be annulled and changed as a result of a change in the circumstances of the case,
even though they were challenged, and even final.”
62 S. Gronowski, Ustawa antymonopolowa. Komentarz, Warszawa 1999, p. 302; I. Gabrysiak,
VI. Conclusions
The Polish legal system protects, in part, only the rights of telecommunications
undertakings in connection with the enforcement of regulatory decisions on
electronic communications. It is worth praising the administrative procedure
rules concerning the proceedings held before the President of UKE, and the
rules that govern the proceedings before administrative courts to the extent
to which these courts are competent to hear appeals against decisions of the
President of UKE. The only more significant suggestion de lege ferenda in
this respect concerns the recognition of the full effectiveness of rulings of the
regional administrative court (WSA) to suspend the enforcement of a decision
of the regulatory authority.
The procedural guarantees relating to the suspension of the enforcement
of decisions taken by the President of UKE by the SOKiK, on the other hand,
should be viewed rather critically. Although the possibility of suspending the
enforcement of such decisions also exists under the latter procedure, contrary
to the aforementioned standards set out by the Council of Europe and the
models taken from Community law, judgments of the SOKiK in such cases,
do not require to be provided with a statement of reason and are not subject
to review by the court of second instance. Neither does the law expressly
set the premises to be followed by the court in such cases. This means
that Polish law does not fully guarantee effective legal protection to Polish
telecommunications undertakings, and by doing so, it limits their right of
appeal referred to in Article 4(1) of the Framework Directive. This situation
requires urgent legislative amendments, the closest model for which can be
the rules concerning the proceedings before administrative courts.
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